It is DMCA Section 1202 and More - Exh. A: Dec. 19th Letter From SCO to Lehman

Tuesday, February 17 2004 @ 09:21 PM EST

Here is one of the letters Red Hat has sent to the judge, attached to its Motion. It is the December letter from SCO to Lehman. Sure enough, it's the DMCA Section 1202. But that isn't all.

They have two claims: first, they are trying to say that the ABI files come verbatim from Unix System V, which they assert is a serious violation of their rights. Second, they say their copyright notices, which under the BSDi settlement they say are supposed to be on the ABI files, are not properly on the files. How they know what is in the settlement when they told IBM and the judge in discovery, IIRC, that they don't have a copy of it, is a mystery. However, the solution isn't so simple as just putting the proper notices on the files, my pretty.

They are the copyright holder, they say, and they never gave permission for their copyrighted code to be released under the GPL, although they acknowledge that they were "improperly distributed under the GPL", evidently by their butler. Or Miss Scarlett, with a mouse, in the drawing room. At any rate, it wasn't *them*. Somehow it just happened and now, as copyright holder, they demand their immediate removal.

These files were supposed to have USL / SCO copyrights attached. The result, which they call "UNIX Derived Files", may not be used in any GPL distribution without the copyright holder's permission. That would be SCO, and they clearly say that their affirmative consent "has not been obtained and will not be obtained". So there. Take that.

They think they are being mighty clever, I guess. Cunning, you might even say. The Big Bad Wolf would like to blow Linux's house down. They hint they have more code in their back pocket that they will spring on Linux in due time. I think, however, they will find they are mistaken about the code, as time will reveal, as well as about whether they released the ABIs under the GPL, not to mention their unique "legal theory" about how it works. Then there is the big question: does Novell actually own the copyrights on Unix System V instead of SCO? More on all this later, after I get all the Red Hat documents transcribed.

I am working from GIFs and BMPs and in part from RTFs from scanned documents. In some cases you will see brackets, which just means I guessed about what the word probably was but the line was cut off at the margin. <b>UPDATE:</b> I have the PDF now and have made corrections and removed the brackets. You can get the PDF also: http://www.groklaw.net/pdf/docket-30-high.pdf and http://www.groklaw.net/pdf/docket-30.pdf. The first is the high resolution copy.

What does it all mean? If you are asking my opinion, SCO is dumb as dirt about code and they never did pass my remedial GPL classes. If this is their best shot, I'd say the game is over. That may be why Lehman's reply, which I will do next, is essentially, don't contact us further. Talk to Red Hat. Once again, the GPL is their Achilles Heel, and it will be their downfall. I would personally like to thank Richard Stallman and the FSF for inventing it for just such a rainy day as today.

*******************************************************
SCO

December 19, 2003

Richard Fuld
Chairman & CEO
Lehman Brothers Holdings, Inc.
[address]

Re: The SCO Group, Inc. ("SCO")

Dear Mr. Fuld:

In May 2003. SCO warned about enterprise use of the Linux operating system in violation of its intellectual property rights in UNIX technology. Without exhausting or explaining all potential claims, this letter addresses one specific area in which certain versions of Linux violate SCO's rights in UNIX.

In this letter we are identifying a portion of our copyright protected code that has been incorporated into Linux without our authorization. Also, our copyright management information has been removed from these files. These facts support our position that the use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act, including the Digital Millennium Copyright Act. We are notifying you of these facts so you can take steps to discontinue these violations. We believe these violations are serious, and we will take appropriate actions to protect our rights. No one may use our copyrighted code except as authorized by us. The details of our position are set forth below. Once you have reviewed our position, we will be happy to further discuss your options and work with you to remedy this problem.

Certain copyrighted application binary interfaces ("ABI Code") have been copied verbatim from the UNIX System V code base and contributed to Linux for distribution under the General Public License ("GPL") without proper authorization and without copyright attribution. While some application programming interfaces ("API Code") have been made available over the years through POSIX and other open standards, the UNIX System V ABI Code has only been made available under copyright restrictions. AT&T made these binary interfaces available in order to support application development to System V-based operating systems and to assist System V licensees in the development process. The System V ABl's were never intended or authorized for unrestricted use or distribution under the GPL in Linux. As the copyright holder, SCO has never granted such permission. Nevertheless, many of the ABIs contained in Linux and improperly distributed under the GPL, are direct copies of UNIX System copyrighted software code.

Any part of any Linux file that includes the copyrighted binary interface code must be removed. Files in Linux version 2.4.21 and other versions that incorporate the copyrighted binary interfaces include:

The code identified above was also part of a settlement agreement entered between the University of California at Berkeley and Berkeley Systems Development, Inc. (collectively "BSDI") regarding alleged violations by BSDI of USL's rights in UNIX System V technology. The settlement agreement between USL and BSDI addressed conditions upon which BSDI could continue to distribute its version of UNIX, BSD Lite 4.4, or any successor versions. One condition was that BSD retain USL copyrights in 91 files (the "UNIX Derived Files"). A complete listing of the UNIX Derived Files is attached. The ABI Code identified above are part of the UNIX Derived Files and, as such, must carry USL / SCO copyright notices and may not be used in any GPL distribution inasmuch as the affirmative consent of the copyright holder has not been obtained, and will not be obtained, for such a distribution under the GPL.

Use in Linux of any of ABI Code or other UNIX Derived Files code identified above constitutes a violation of the United States Copyright Act. Also, distribution of copyrighted code identified above as part of a source or binary distribtion of Linux, with copyright management information deleted or altered, violates the Digital Millenium Copyright Act ("DMCA") codified by Congress at 17 U.S.C. Section 1202. DMCA liability extends to those who have reasonable grounds to know that a distribution (or re-distribution as required by the GPL) of the altered code or copyright information will induce, enable, facilitate, or conceal an infringement of any right under the DMCA. In addition, neither SCO nor any predessor in interest has ever placed an affirmative notice in Linux that the copyrighted code in question could be used or distributed under the GPL. As a result, any distribution of Linux by a software venfor or a re-distribution of Linux by an end user that contains any of the identified System V code violates SCO's rights under the DMCA, insofar as the distributor knows of these violations.

As stated above, SCO's review is ongoing and will involve additional disclosure of code misappropriation. Certain UNIX code, methods and concepts, which we also claim are being used improperly in Linux, will be produced in the pending litigation between SCO and IBM under a confidentiality order.